Profanity and ‘fighting words’

By Atty. Eduardo T. Reyes III

FBI agents recently raided Donald Trump’s home in Florida as part of a criminal investigation relative to the January 6, 2021 siege on Capitol Hill. To recall, the attack led to scores of deaths and injuries and precipitated the second impeachment of erstwhile President Donald Trump.

Known to be brash, Mr. Trump is accused of inciting his multitude of followers to lay siege on the house of the lawmakers who were canvassing the votes for the recent presidential elections in the US.

Thus, the power of words.

Jurisprudence always waxes poetic when in defense of free speech.

In the past century, two jurists, Holmes and Brandeis, came down with dissents that were not only eventually adopted as majority decisions, but had become a fixture in today’s jurisprudence.

In Whitney v. California (1927), Justice Louis D. Brandeis held that “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.” This right to free speech is so essential as to constitute as a citizen’s duty according to him, thus: “Therefore, the exercise of the right of free speech is also a citizen’s duty, for its exercise is more important to the nation than to himself …. In frank expression of conflicting opinion lies the greatest promise of wisdom in governmental action; and in suppression lies ordinarily the greatest evil.”

This chimed with Justice Oliver Wendell Holmes’s pronouncement that free speech being a prized-commodity must be tested in the “marketplace of ideas”, thus: “that the ultimate good desired is better reached by free trade of ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market and that truth is the only ground upon which their wishes may be safely carried out. That, at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. (Opinion by Justice Oliver Wendell Holmes, Jr. in Abrams v. United States [1919] as cited in Brandeis, “A Life” by Urofsky).

Locally, TV5 which airs a show by the Tulfo brothers who are known for their tough confrontational reality shows, had some run-ins with the regulatory body as to the content of their shows. In Movie and Television Review and Classfication Board (MTRCB) v. ABC Development Corp., doing business under the name and style Associated Broadcasting Company (TV5) (G.R. No. 212670) which came down on July 6, 2022, the MTRCB  wanted to stifle the show for words amounting to an incitement which could trigger a fight or melee.

In this case, the Supreme Court drew the line between allowable speech and those that cross the red line. The latter is called “fighting words”.  “‘Fighting words’, then, which bring about a general disorder that actually immediately threaten the State with a clear and present danger, such as in sedition and rebellion, are unprotected speech. On the other hand, words that are merely spewed out in a fight or quarrel between private individuals, although profane and vulgar, are still protected. The difference lies in the effect of the words to the State’s breach of peace or general order”. (MTRCB v. ABC Development Corp., Ibid).

Thus, to be deemed excessive, the words must be powerful enough as to cause a breakdown of the general peace and order. Anything less, especially those blurted out in the heat of anger during a fight, cannot be considered as “fighting words” that the state can muffle.

Nevertheless, while this column had always championed free speech to the point of considering even those assertions that are questionable; still, there is no substitute to decency, kindness and sincerity.

Surely, it would be a much better world if gentleness could overcome profanity. And that instead of inciting people to fight,  they would be inspired to do what is right. And what is good.

(The author is the senior partner of ET Reyes III & Associates– a law firm based in Iloilo City. He is a litigation attorney, a law professor and a law book author. His website is etriiilaw.com).